FBI to ACLU: Nope, we won’t tell you how, when, or why we track you

In the wake of the Jones decision, FBI refuses to release search-related memos.

Back in August 2012, we reported on how the American Civil Liberties Union was compelling the FBI to fully disclose how it interprets the results of the United States v. Jones case—a unanimous Supreme Court decision establishing that law enforcement does not have the authority to put a warrantless GPS tracker on a suspect’s car.

As we reported then, other types of high-tech surveillance and monitoring by law enforcement continue on a nearly daily basis around the country. Cops are using everything from tap and trace, ping data, license plate surveillance, and other techniques as a way to keep tabs on suspects and innocent citizens without going through the threshold of a judicially reviewed probable-cause-driven warrant.

Can the Feds track your boat?

In a 12-minute video posted online, Weissmann spoke about two memos: one focused on the use of GPS tracking on forms of transportation beyond cars, the other regarding how Jones applies to tracking methods outside of GPS (presumably like cellphone ping data).

“Is it going to apply to boats, is it going to apply to airplanes?” Weissmann asks in the video. “Is it going to apply at the border? What’s it mean for the consent that’s given by an owner? What does it mean if consent is given by a possessor? And this is all about GPS, by the way, without getting into other types of techniques.”

And those questions remain wholly unanswered.

“The Justice Department’s unfortunate decision leaves Americans with no clear understanding of when we will be subjected to tracking—possibly for months at a time—or whether the government will first get a warrant,” Catherine Crump, an ACLU staff attorney, wrote on Wednesday.

“This is yet another example of secret surveillance policies—like the Justice Department’s secret opinions about the Patriot Act’s Section 215—that simply should not exist in a democratic society. Privacy law needs to keep up with technology, but how can that happen if the government won’t even tell us what its policies are?”

Needless to say, the ACLU says its fight isn’t over, and it will move this further up the legal chain.

Isn't it obvious that there are no policies. After all, making formal policies is time consuming and painful. The less you formally formalize, the less it is going to get noticed or questioned, and the less meaningful an answer you will be able to provide and it all makes it easier to reverse course on anything that gets out of hand. So the real question is going to be; what can the citizens do to regulate the regulators!

The FBI could have just photocopied 50 or so pages of someone's middle finger. It would convey more useful information than what they actually provided.

No kidding, the memorandum from July 5, 2012 could be about anything. The only details not hidden are the header and a warning to not disseminate outside the dept. of Justice. I suppose there is a little information to glean from the total page count (54), though not much.

The average American thinks that government is an institution funded by the taxpayers that represents the taxpayers interests. In contrast, the average FBI middle manager thinks that government is the mother of all benefits, pensions and privileges. Needless to say, they have every intention to keep it that way.

This misunderstanding would be immediately rectified if Congress' interests were aligned with those of taxpayers. Unfortunately, Congress is the second mother of all benefits, pensions and privileges. It would take a dozen brave Congressmen to confront Congress' selfishness. The Patriot Act et al gives the FBI the power to guarantee that none of these brave men and women get anywhere near Washington.

The FBI could have just photocopied 50 or so pages of someone's middle finger. It would convey more useful information than what they actually provided.

It actually would have been quite funny if one one page they redacted everything except for the word 'with'. But as Tommy Lee Jones would say "we're the FBI, we have no sense of humor to speak of." And he's an authority on lack of humors...

You guys just need to elect me president in 2020 and I'll throw all the people who violated the civil rights of Americans in jail.

TD in 2020 - why vote for a donkey when you can vote for a dragon?

Only one issue...who's going to build these jails when you throw everyone into them?

The same people who already build our jails - illegal immigrants

blingting wrote:

Hmm, maybe because copyright infringement would carry the death penalty by 2021?

Oh come now, I promise to be a mostly beneficient overlord. Reduce copyright terms to 20 years! Put most of Congress in jail! Pass legislation banning gerrymandering! Pot with the purchase of every chicken!

And then cry when I remember that the executive branch doesn't have legislative power. Maybe that NSA database will be useful for blackmail. Hm...

Next up: arming border patrol with science fiction style guns that fire GPS tracking dots, so that people crossing are tracked down and returned at a leisurely pace. We'll call it the "release and catch" program.

And yet it is illegal for me to put a GPS or cell jammer in my car to prevent exactly such illegal activities. *sigh*

Entirely different ball of wax, dude. Jammers are disruptive to people making legitimate use of those services, and are an unlicensed use of wireless spectrum.

You shouldn't be all that surprised that the FBI isn't too concerned about stepping on civil liberties. If the FBI wants to talk to you, you're implicated in something which falls somewhere above the "fairly big deal" line.

And yet it is illegal for me to put a GPS or cell jammer in my car to prevent exactly such illegal activities. *sigh*

Entirely different ball of wax, dude. Jammers are disruptive to people making legitimate use of those services, and are an unlicensed use of wireless spectrum.

You shouldn't be all that surprised that the FBI isn't too concerned about stepping on civil liberties. If the FBI wants to talk to you, you're implicated in something which falls somewhere above the "fairly big deal" line.

It depends really. The FBI has historically been used to monitor all sorts of groups that it really shouldn't have been monitoring. Heck, look at what Hoover did. That man was named aptly; he just sucked up secrets.

It is not clear to me that these documents are required to be disclosed under the FOIA.

The FOIA is at 5 USC Sec. 552. There are nine exceptions to what has to be disclosed. Exception 5 (at 552(b)(5) excludes, in somewhat opaque language " inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency".

Not surprisingly, there has been a lot of litigation on the FOIA. In 1983, the Supreme Court decided FTC v. Grolier and explained that Exemption 5 exempted work product that would not generally be discoverable in civil litigation ("Work-product materials are immune from discovery unless the one seeking discovery can show substantial need in connection with subsequent litigation. Such materials are thus not "routinely" or "normally" available to parties in litigation and hence are exempt under Exemption 5. ") Here is a link to Grolier http://www.law.cornell.edu/supremecourt/text/462/19

The two memos in question at least *look* like attorney work product. They are from the chief of the Criminal Appellate Section, who is an attorney. They are addressed to prosecutors and section heads in the appellate division, who are also attorneys. And it appears that they provide "guidance" on the application of the Supreme Court's opinion in Jones v. State. (Incidentally, that's why the DOJ left those parts unredacted, I think).

Not everything written by an attorney is privileged work product, and the ACLU may come up with a reason why this isn't. But it sure looks like something that wouldn't be discoverable in a civil case, and thus wouldn't be disclosable under the FOIA.

I'm not at all worried about the Feds putting a GPS tracker on my car, I do my own maintenance so it would be very hard to keep me from finding it, but if I did find one I'm not saying it wouldn't end up on the first MARTA bus I came across. Let those idiots figure out why it keeps driving around the same neighborhood all day.

Isn't it obvious that there are no policies. After all, making formal policies is time consuming and painful. The less you formally formalize, the less it is going to get noticed or questioned, and the less meaningful an answer you will be able to provide and it all makes it easier to reverse course on anything that gets out of hand. So the real question is going to be; what can the citizens do to regulate the regulators!

For starters, you could stop appealing to a largely anonymous online people on an excellent but politically unimportant news site and take action in the real world that nobody here would probably notice or care about. Other than to comment on it from the safety of their homes and cubicles.

Isn't it obvious that there are no policies. After all, making formal policies is time consuming and painful. The less you formally formalize, the less it is going to get noticed or questioned, and the less meaningful an answer you will be able to provide and it all makes it easier to reverse course on anything that gets out of hand. So the real question is going to be; what can the citizens do to regulate the regulators!

For starters, you could stop appealing to a largely anonymous online people on an excellent but politically unimportant news site and take action in the real world that nobody here would probably notice or care about. Other than to comment on it from the safety of their homes and cubicles.

I'm sorry, but if the electorate is as apathetic as in the US, the democratic process you're advocating is not going to fix the undemocratic elements of the executive branch. I lived in the US when the Patriot Act was introduced. It was voted into law with hardly any opposition from mainstream media, and the ACLU was very successfully painted as a liberal unamerican activity.

Edit: I assumed you meant writing your congressman, but upon rereading I realize you make a broader point.

If this were a police state ARs would have been shut down for it's previous articles on surveillance and tracking. Things like this may not be good, but we're still a long way from an actual police state.

What I find amazing is the following: all organizations have a mission and budget. Mostly, the budget should cover the needs of the mission - tools, employees, consultants and so forth... And also, they have to report their progress to accountants employed by the government, say...

When dealing with an organization like the FBI, one might think that their task is so difficult, that they do not have time to terrorize arbitrary people, indeed, they assign only important problems to their highly trained staff...

If what I read nowdays on the net is true, this does not seem to be the case. They just _get_ some money and, like, _do_ some _stuff_ with it... Make investigations of sorts, you know, look into things and such...

My thought is this: the best way to get at derailed organizations "employed" by the government is NOT by standing up for civli liberties - we all know that civilians are weak and need protection... The best way is greed: "if u dont need the money, give it back" - that is fight for your dollars - fighting for money is actually accepted.

I do not know what laws there are in the US, but take them to court, if possibile, for "irresponsible use of tax funds" or some such...